Dissenting Opinions

Making Fetch Happen (with Stephen Sachs)

Episode Summary

Will is joined by Duke law professor Stephen Sachs to discuss what is wrong with Erie Railroad v. Tompkins, how judicial decisions are like poker games and the fashion industry, and whether it is naïve to think that judges don't make law.

Episode Notes

Will is joined by Duke law professor Stephen Sachs to discuss what is wrong with Erie Railroad v. Tompkins, how judicial decisions are like poker games and the fashion industry, and whether it is naïve to think that judges don't make law.

Justice Scalia audio is from CSPAN "The Role of the Judiciary" Nov. 22, 2008

Case audio is from Oyez.org

Episode Transcription

Will Baude:    Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host William Baude, and each episode will have top legal minds discuss a Supreme Court case they believe is misunderstood.

[David Currie Audio]:       The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, to controversies to which the United States shall be a party, to controversies between two or more states, between a state and citizens of another state, between citizens of different states.

Will Baude:    This week, we're talking to one of my best friends and frequent partners in crime, Professor Steve Sachs at Duke. In general what we're trying to have our guests do is tell us about a Supreme Court decision they think everybody else thinks is great, that they think is terrible or sometimes vice versa. And Steve, I know one decision that is near and, what's the opposite of near and dear to your heart, is a staple of first year civil procedure case classes everywhere, Erie Railroad versus Tompkins. So you tell us, I guess, before we learn why it's terrible. Can you tell people who don't know what the world was like before this decision, and what Erie did to that world?

Stephen Sachs:           So, before the decision in Erie versus Tompkins the world was a green and pleasant place. The lion laid down with the lamb and all was well, and afterwards we have the disarray that we now see today. Erie versus Tompkins is a case that arises out of a train accident in Pennsylvania. And from these origins, it arrives at conclusions about the nature of law and about the relationship of courts in the federal system that I think quite wrongheaded and have done a great deal of damage. Before Erie the idea was that federal courts and state courts in certain areas of the law, areas known as general law, where states were borrowing from common standards that applied across a lot of different jurisdictions. Federal courts and state courts are really on the same page. They would both be engaging in the same activity. Their job was both to identify what that general law was, and neither necessarily would defer to the other.

            If a state wanted to depart from the general law but wanted to enact a statute on something or adopt some sort of local customer usage it could, otherwise they would both be trying to identify the right legal rules. And this worked really well in certain areas. Judge Fletcher has written about maritime insurance as being one of them, where state and federal courts would try to ascertain the same standards.

            Erie says that when it comes to an issue of state law, even if the state is incorporating general law by reference, the state courts are essentially making law rather than finding it, that they're always in the position of telling us what the state law is, and the federal courts can never really disagree. And what that does is two things. One is it encourages division on the substantive standards of law and makes it harder for different jurisdictions to be doing the same thing. But it also gives state courts license in ways they didn't necessarily have to go off and make some new law on their own, regardless of what the state constitution or the state legislature says about it. And it also does some very strange things to federal law and federal common law, but we can talk more about that.

Will Baude:    We should. So just to understand, so this picture of the common law, you're saying that before Erie, there might have been an idea that the state courts were not just making law, but after Erie they suddenly get told, "Oh, I guess we're in charge of making law now," is that the idea?

Stephen Sachs:           Yeah. Obviously plenty of state courts were happy to do so beforehand, but the picture that Erie is relying on is one in which judges are always in the position of making law, that the law of a state can be declared by its legislature or can be declared by its Supreme Court, and both of those are just fine. And indeed, as Justice Holmes had written in an opinion that was sort of endorsed in Erie, whenever the state constitution creates a Supreme Court, that's the job it's giving that Supreme Court to do. The job of a state Supreme Court is to make rules of common law. That's not necessarily the way that people had seen the way common law worked beforehand. You could think of common law sort of like the rules of poker. Sometimes there are house rules, and sometimes people play it differently in different places, but there are some general standards, like the rankings of hands, that everybody looks to the same sources to try to figure out.

Will Baude:    Right. Okay. But so, and I'm playing a little bit of a devil's advocate here, but isn't that really a fiction? The idea that, I think Jeremy Bentham thought, obviously courts are making law. That's one of the reasons we need to have more statutes, is because otherwise we have rule by judiciary. And later Justice Scalia said the same thing. But of course he said, "Even I am not so naive as to doubt that courts make law."

[Justice Scalia Speech Audio]: Now, I suppose there are judges who just think that their role is to make the law rather than apply the law that the people have made through their representatives. And that's a bad judge.

Will Baude:    So if Jeremy Bentham and Justice Scalia thought that courts made law, why were they wrong?

Stephen Sachs:           So I think they were wrong in two ways. One is just the practical way of how much of the law is actually coming from court decisions and how much is coming from treatises and other sources. How much is in the water are generally, and how much is actually being done by a particular judge? But the second thing is more theoretical, which is, mistaking how it is that courts bring about particular decisions. So if you're Anna Wintour and you put some new style on the cover of Vogue, people can say in some sense that you have made it the fashion. You can have some sort of causal impact. And certainly when a system with vertical precedent, it's certainly true that lower court judges have to assume that whatever the higher court judges said is correct.

            And so in that sense, there is a way in which the higher courts are supplying law for others. But it's not necessarily the case that they recognized any authority for the judges, just declare what new law was, in the same way that we don't think Anna Wintour has some legislative authority to declare what's going to be in for next season. She can certainly try. She can try to make fetch happen, but whether fetch happens or not is up to other people, and up to the question of will the rest of the folks follow along? Is it going to be adopted as the general rule by the profession?

Will Baude:    Right. But as I think about that analogy, two differences. One is that nobody appoints or elects the fashion police, whereas with the judges, we do have some sense, we are investing them with government authority. And I guess the other is that there are no fashion police who enforce the commands of vote, but there are actually real police who enforce the commands of courts. So if we had a fashion expert who we appointed through our top level legislative process, and then had a bunch of police officers go around and shoot people if they disobeyed their decrees, wouldn't we think of them as making fashion?

Stephen Sachs:           You certainly could, but it would matter a lot whether that was their job. So it's not just a question of do the judges have a lot of causal impact on how the law is administered on the ground? That may definitely be the case. The question is, is that what they're appointed to do? So yes, we're appointing them, but are we appointing them to make us some new laws, or are we appointing them to apply in particular case is the laws that we already have? And that conception of their job description can matter a lot for how they actually go about doing their job. Certainly there are people in the legal system, like bailiffs, who we expect to follow what the judges say, even if they don't think it's necessarily correct. And you could also imagine appointing judges whose job is to follow what the existing legal rules say, even if you don't think it's actually correct.

            The other thing is that there are an awful lot of social structures that have enormous impact on how people live their lives. We may not have social norm police who go around and police... But there are lots of places in the world where social norms are enforced by very severe violence. And yet we recognize the ways in which those social norms aren't necessarily created by particular officials. They're, in some ways, more pernicious because they're more distributed throughout society. So when we're appointing judges to apply particular rules, it matters a lot whether they're the ones coming up with them, or whether they're supposed to follow some outside standard, even if it's going to be administered through violence.

Will Baude:    And is this a question of theory or a question of reality? Because you might imagine [inaudible 00:08:28] saying, "Well, look, it's not supposed to be the judge's job to make stuff up, but then we look around and that's sure what they're doing."

Stephen Sachs:           I think it's both. Certainly we want to have our theoretical Ps and Qs straight. We should be understanding what regime we have. But I do think that it affects the reality. When you're a professor who is grading a class, it might be the case that, it's possible, I've heard from other professors, not me, that they might like some of their students more than others. We have a social norm about not letting that affect a student's grades. It's possible that overall it does happen, but it's also a very different real world experience to be part of an institution where that's part of the rules, where that's what you're supposed to do. You're supposed to be above board and honest about grading students based on how much you like them, as opposed to a world where you're really not supposed to do that. And if anyone ever knew that you had, it would be a really bad thing. So there is a real world difference from experiencing a system where certain people get to make up new rules, even if they don't make up those rules very often.

Will Baude:    Okay. In thinking about what Erie did wrong or what it should have done, am I right that part of the problem is it just assumed all state court judges make law, and that's not something to be assumed? But I take it, it's possible for a state court judge to make law. A state could have a system where they do that.

Stephen Sachs:           It is possible. I haven't really figured out the 14th Amendment due process consequences of a state constitution that just said, "Hey, judges, go make up some rules after the fact." Certainly the ex post facto clause might get a little bit nervous if they are explicitly doing that.

Will Baude:    Well, we might say in that state, it's a rule of pure prospectivity. So all judicial decisions don't apply to the parties before you, they only apply to future parties. That'd be fine.

Stephen Sachs:           Yeah. If a state wants to vest its judges with legislative power in that way, it's not immediately obvious to me that anything in the federal constitution would stop them. But although there might be.

Will Baude:    Okay. So then, what Erie should have said was, in any case where a state court is involved, you should figure out what kind of court this... You have to do an investigation of state constitutional law, I guess? Figure out what kind of power this state court has. And then if they have a lot of legislative power as a matter of state law, you should defer to them. And if they don't, you shouldn't?

Stephen Sachs:           I think that's right. Now that may not seem like a very interesting inquiry, and certainly today, it's certainly possible that most state constitutions are understood to vest that authority in state judges. It's not clear that that was the case at the time of Erie. And it might not have become the case by nowadays if Erie hadn't assumed that that power was already there.

Will Baude:    Yeah. Okay, good. Right. I take it, part of the problem with Erie is early in the 20th century, and it's part of the general success of some combination of legal realism and other academic ideas that have pushed us to an idea that that judges make law. Right?

Stephen Sachs:           Yeah. There certainly was a much longer academic tradition of arguing that judges make law. And that law is really just the output of courts that led to Erie. The academics were leading on this, rather than the judges.

Will Baude:    I guess this is a big part of what I wanted to ask about is, but now what? So now Erie is almost a hundred years old? And as you said, a lot of stuff that's happened then may just be assuming Erie is true. So isn't it right now?

Stephen Sachs:           I would still say no for two reasons. One is, there are still some states that are holdouts. Georgia has some very strange attitude towards the common law. It's not entirely clear what it thinks, but it seems to think about it in some ways in a pre-Erie mindset. But at the very least, a new revision of Erie that looked to what the states are actually saying and doing about their state courts might produce some different results. You can imagine states that would adopt constitutional amendments that would say, "Hey, we really don't want our courts to do this, because now we see that it's not their guaranteed role."

            The second thing is that it would also matter for areas where the states can't weigh in. So the second half of Erie, or the parts that weren't actually in Erie but in the follow-on cases were about what federal courts should do about all this. Because we're reasonably sure that they don't have this kind of legislative power. And if they don't, then what do they do in cases where no state law obviously applies?

            So if we have a state borders case, or a state water apportionment case, nowadays we talk about those as being settled by federal common law, which is something that, as far as we can tell, didn't exist for the first 150 years after the founding. And the idea that federal courts are just given license to make up some federal common law is a real substantive change to our structure of government. When it comes to reviewing state cases, not a ton would be different, but there are some areas of horizontal federalism, like personal jurisdiction choice of law, that might come out a little bit differently. If you take a Erie is wrong approach, than if you're looking at it from Erie's mindset.

Will Baude:    All right, so slowing down, I think most people learn Erie, I think even I learned Erie as saying there is no federal common law. And you're telling me that actually the problem with Erie is that it created federal common law? It did the opposite of what it said it was doing?

Stephen Sachs:           Yes. Same day as Erie, you have the Hinderlider case, which if I'm remembering correctly is about water. And the problem is that all of a sudden you've got to have some rule to apply when states are fighting over water. And you can't look to either state's law, because neither state can just declare, "We get all the water, and we also own New Jersey." So you have to look to something else. But Erie had just told us that this general law thing that's standing behind these state decisions, "Well, that's a transcendental nonsense. That's an illusion. That's a fallacy," et cetera. So if we can't look to that, what are we he's supposed to look to? And courts start inventing a category of federal common law, which according to them is federal law. It provides for federal question jurisdiction. And it's also, in some ways, the play thing of federal courts. Federal courts have the power to adapt it as they see fit in the manner of what they call a common law judge.

Will Baude:    Okay. So in the post Erie world, now we would've governed all these things. So so we're talking about water disputes, choice of law... Anything else important in this category?

Stephen Sachs:           Well, certainly areas of federal contracting, things like the Boyle defense...

Will Baude:    Admiralty, I guess?

Stephen Sachs:           Admiralty.

Will Baude:    International law?

Stephen Sachs:           Good deal of international law, especially private international law.

Will Baude:    Yeah. Okay. So these things all beforehand, would've been governed by a general unwritten law that federal courts could opine on and state courts could not opine on, and now they're governed by federal common law, which again, federal courts can opine on and state courts can't opine on. So isn't it just, "It's fine. It's just, we relabeled it," in a dumb way?

Stephen Sachs:           The two differences that I see as most significant are one, that federal courts are officially told it's okay to make up some new rules in this area. I think that the Boyle contractored events is a potentially good example of that. And secondly, that they're told that this is an area of federal law and therefore offers federal jurisdiction. So for instance, I think that the Alien Tort Statute cases, and Sosa, and so on, come out out very differently. If we see international law as an area of general law, that in diversity federal courts might be able to opine on if there's no applicable state law that gets in the way. Then if we think of this as some uniquely federal area of jurisprudence, that's subject to federal control.

Will Baude:    Okay. So thinking about at this statement in reverse order, so what are the areas of this common law, where there otherwise wouldn't be federal jurisdiction? Because there is jurisdiction over Admiralty cases and Alien Tort cases and all those things.

Stephen Sachs:           There is jurisdiction over Alien Tort cases, but not, for instance, suits between two aliens that cite an international law. Cases like, I'm forgetting the name, the climate change cases arising out of Baltimore, where there's a removal case before the Supreme Court right now, and one of the, apparently most plausible to the court, grounds for removal is the idea that this is a federal common law issue of whether or pollution from one state affects another state. The way it would've been handled, of old, was as an article three issue. If you've got parties that meet the article three definitions of diversity or immuno suits by a state against citizens of another state, then that can come into federal court. But it's not a generally federal issue that always belongs in federal court and that the federal courts get to develop new rules for.

Will Baude:    Okay. I got that. It seems this is a minor error in the scheme of things. Of the grievances against Erie, this is fifth?

Stephen Sachs:           It's a minor error in part, but I think what it shows is that there's a general law shaped hole in the constitutional structure and that judges have to do a lot of weird and distorting things to fill it in. If you start trying to figure out when can a state exercise its power over people in other states and you can't use the words general law, then you start loading a ton of stuff into innocent phrases, like due process, and trying to extract a lot of stuff out of the constitution that it really can't support the weight of. And so, yes, in some ways, how many federal common law cases are there? Not that many. How many cases arise where we really have different opinions between federal state courts? Not too many. But the change to the structure has distorting effects that work their way through the whole system.

Will Baude:    Yeah. Okay. And it seems like the bigger place for this distortion occurs is in thinking about the law-making power of federal courts. That if they treated this in the old pre-Erie way, they would say, "We're not the bosses of this area. We're just trying to figure out what the rules are." Whereas now they treat it more like they're an administrative agency who's been tasked with making rules to govern Admiralty law and Tort suits and, apparently, climate change.

Stephen Sachs:           Yes. And indeed, the idea that this is what a common law judge is supposed to do. And that has a lot of knock on effects, both at the state and federal levels, in part because a lot of people who go on to staff state courts are educated in law schools that look at a lot of federal opinions. And so the notion of what federal courts do and what courts do can have a lot of influence.

Will Baude:    I guess then I'm wondering, is this also a problem in theory or practice? When I read these Supreme Court or federal common law opinions, they always sound very ambitious in theory. They are federal common law, they can do what they want to do. But then they always wimp out. They say, "Oh, should there be this kind of damages in Admiralty? Well, gee. Congress hasn't provided for these damages and these other statutes, so we won't do it either. Should there be aggressive nuisance suits against climate change? Well, gee, that would be a big deal, so we're not going to do it." I don't know. Isn't Erie... Haven't you actually won? Aren't the courts actually afraid to use this common law power?

Stephen Sachs:           It would be great if that were so. I think it's possible that they do have twinges of conscience that make it harder for them to really start picking up the pen, but sometimes they do and sometimes they don't. And if courts are using unjustified illegitimate power, that seems like something that academics have the right to worry about, even if they only really use it sometimes.

Will Baude:    Fair enough. As I think about what are the worst hits, one is this Boyle case we've talked about a couple times, where, can you sue a federal military contractor for torts? There's no reason you shouldn't be able to, but Justice Scalia says, "No, that would be bad." And he just, "As a matter of federal common law, we're going to raise a category of tort suits.

[Case Audio]: We hold today that the procurement of equipment by the United States is an area of uniquely federal interest, and that a suit such as the present one directly implicates that interest. Still as we have said in the past, state law will be displaced in a situation such as this only where it significantly conflicts with the federal interest. We think such a conflict exists where state tort law seeks to impose a duty contrary to that established by a federal procurement contract, and where the design specified in that contract represents the type of governmental judgment that Congress sought to immunize through the discretionary function exemption to the Federal Tort Claims Act.

Will Baude:    Yeah. Okay. I'm wondering, do you think this has affect how constitutional law has gone? I was just teaching a judicial supremacy to my constitutional law students, and it is really remarkable to contrast things the court says in the 19th century about, "It's our job to interpret the law. And all we do is lay down the statute next to the constitution and figure out the right answer." Things it says in the 20th century, "Constitution is the supreme law of the land. Therefore our interpretations of the constitution are the supreme law of the land, and anybody who disagrees with us as committing trees and against the constitution." Are they getting that? Is this all Erie's fault?

Stephen Sachs:           I don't think it's all Erie's fault, but I think that it drinks from some of the same springs as Erie. I think that the notion of the judicial role is very different. If you see the judge generally as a law follower or partly as a lawmaker. Is this a first order policy concern? Probably not. I think tax policy and housing policy probably matter more to many more people, but when it comes to how judges should do their business, I think that this is at the root of a lot of mistaken views of the judicial role.

Will Baude:    Okay. So when we teach our students about common law subjects, I'm pretty sure all of the classes they teach, teach them the same thing. We teach them a bunch of tort cases where judges realized that they needed to create products liability. We teach some contracts cases where judges realized the remedies weren't working, some property cases, they get rid of outmoded property rules that don't make sense anymore. So when is this mythical time that judges were not making common law? What are the cases?

Stephen Sachs:           There have always been judicial shenanigans, and you can see Lord Mansfield getting called out for making innovations on the common law. But there, previously to the 20th century, had been the expectation that if a judge was going to engage in some sort of shenanigan, they'd better cover their tracks pretty well. And as in many areas, that sort of norm has limiting effects. You have a great opinion from Chief Justice Marshall in Livingston versus Jefferson, where the litigants come in and ask him to change a rule of the common law about where you can bring trespass cases. And he says, "I agree with you. This emerged out of a fiction. It's a really weird rule. The judges a hundred years ago just were making this stuff up, but now it's the rule and I can't do anything about it. And I can't depart from it on my own hook, because that's not my job, even if they might have done some shenanigans to make it the accepted rule a long time ago." And I think that a view of judging that looks like that does have an effect on how many new rules are being introduced.

Will Baude:    Okay. So, why would we want a rule, though, that says you can engage in shenanigans? Essentially you're saying if the judges cheat and change the rules but they cover the tracks, then later when we uncover it, we can't fix it. We can't un-shenanigan them because now it's done.

Stephen Sachs:           If the rules become broadly accepted at that point. Noah Webster probably should not have been trying to change English spelling when he produced his dictionary, but he did. He dropped the U from behavior and it caught on, so now American English doesn't have a U in behavior. At this point, if somebody wanted to say, "Well, let's add back in the U." They would be departing from the current standard, and it would be correct to mark them down on their English test, even though the English use a U. But that doesn't mean that it's okay for judges to commit shenanigans and cover their tracks. This is not a perform-or-pay rule. The idea is that yes, sure, if you cover your tracks sufficiently well, it's easier for it to catch on. That doesn't mean that that's your job. And it doesn't mean that we want people to be committing shenanigans undercover.

Will Baude:    Did Noah Webster cover his tracks, or was he honest about what he was doing?

Stephen Sachs:           He was partly honest. He backed off from certain changes. He tried to take the A out of feather, and people thought that that was just a little weird, so he backed off that one. But people looked to him for a good account of current spelling practices. And there are some places where you can get away with changes and some places where you can't.

Will Baude:    How much do you know about what kind of shenanigans, I guess, were okay? We're saying we want to go back to a world, not where judges never make law, but where they make law and then cover their tracks. And what does the covering their tracks look like? What are they supposed to pretend?

Stephen Sachs:           So, what I would say is we want to go back to a world where the norm was that judges should not make law. We recognize that sometimes judges will attempt to causally influence what people think of as good law. We know that just like we know that crimes will occur, even though we have rules against them. We know that sometimes that happens, but we think that it's better to have a system where you're not supposed to do that. And if it happens, it happens in spite of the rules. Than one where the judges are just told, "Go out and figure out whether you like comparative negligence better than contributory and come tell us."

Will Baude:    Yeah. Okay. This is one question, I guess, is how much of this rests on an empirical prediction about the importance of these norms? So we started the example of pretending that we don't have favorite students. Of course we don't have favorite students, pretending that our colleagues don't have favorite students. And I take it that we might predict that if you pretend that you don't have favorite students, then you'll actually behave in a fairer way. And similar, we might predict if we pretend that if people just pretend they're not making stuff up, they'll make stuff up less. Is that an empirical prediction? And if it were false, would that matter? If it turned out that these fictions had no causal influence on behavior?

Stephen Sachs:           I think that it would still matter, even if they had no causal influence. I think they do have causal influence, because I think that people generally follow norms. But even if they had no causal influence whatsoever, it would still be a very different experience going to a law school where the professor had a leader board at the front of the room and said, "Oh, sorry, Mr. Jones, wrong answer. You dropped three points on my scale of who I like best. And now Ms. Smith is in the lead." I think that that would be a fundamentally different experience of law school. And I think that in a lot of ways it would be a fundamentally different judiciary if the idea of, this is what judges are for was not as present?

Will Baude:    Although it would be worse if that... So comparing it to law school experiences, both of which there are rankings among students, and in one of those worlds, there's a leaderboard. And it's stressful, and you want to be higher on the leaderboard. It's demoralizing to be lower on the leaderboard, but there's a leaderboard. The other one is also the ranking of students, but all of your professors swear to you that there's not. And when you feel that way, you're told, "No, that would be wrong." So you're being gaslit constantly for three years with people pretending this is not happening. Why is that better?

Stephen Sachs:           I think because it gives you the ability to criticize professors for doing something that you believe is wrong, and that they claim to believe is wrong. Hypocrisy is the tribute, that vice pays to virtue. And I think it's worth recognizing certain virtues.

Will Baude:    Then they say, "Oh no, of course you're right. We wouldn't do that. How could you even think we're doing that? We all say we don't do that." I was reading some of the old legal realists, and this seems to be what drove them crazy, was they'd say, "Look, we take these students, we're preparing them to practice law. We teach them all of these legal fictions that we all know don't actually matter to the judges." When you go and advise your client how you're going to win the case, you don't say, "Ah, we'll just tell them about the common law rule of a sheet." You say, "Oh, no. This judge was appointed by so-and-so. It's going to really hard to win in front of him. We're going to try to transfer the case to somebody else." And so, you're doing students a disservice if you don't teach them the real stuff.

Stephen Sachs:           I think that, again, that makes the very strong, empirical assumption that it has no impact on the judge's actual conduct. There are an awful lot of rules of law that, purely as rules of law, seem to get enforced remarkably well. I can go to the Duke Law parking lot and know I own a maximum of one of all of those cars. I know that for legal reasons, and the judges will all agree with me. And so, we should be careful about diminishing the value of legal principle per se. But I do think that it's a different world, if you tell people what really matters is whether the judge likes you or not. And if judges want to rule based on who they like, they feel a very strong need to cover their tracks. That is a different experience of the world. And it's not strange to us that even people who are pessimistic about the ability of getting people to follow good rules would still want those to be the recognized rules.

Will Baude:    Okay. Yes. Although it seems like it's a question of equilibrial. In a world where most people thought most people obey the rules most of the time, we would teach people those are the rules, and we would rap people on the knuckles for publicly breaking the rules. But the more everybody gets the sense that nobody's following the rules, the more you seem like a chump if you still act like the rules are important.

Stephen Sachs:           Yes, certainly. And eventually one would imagine the rules would break down.

Will Baude:    So as I read the dissenting justices who led us to Erie, this is where they were. They might well have thought in the 19th century when Joseph Story still walked the planet, judges behaved this way. But it's just not the way it works anymore. And maybe that's sad, but at this point they're being a chump if you still pretend judges don't make law in the 20th century.

Stephen Sachs:           I think both views can be wrong. It can be wrong that all was well when Joseph Story walked the earth. Surely that's not the case. And it can be wrong that you're a chump if you're following the legal rules today. If it's possible to be both overly Pollyannaish and overly cynical.

Will Baude:    Okay. So how would you describe the world today?

Stephen Sachs:           I would say that right now, we have a world where a lot of judges understand it as their role to alter the law in particular circumstances, to treat legal decisions as laws and not just as the evidence of laws. I think that does have a causal impact on their actual behavior, that they engage in that activity more than they would if they thought that they were not supposed to do such things. And it also distorts a lot of other areas of politics, because much of our legal system is built around the idea of legislatures making certain decisions, and judges not doing so. And so our institutions aren't quite well designed for a world in which judges actually possess legislative power.

Will Baude:    And now thinking back to, again, this imagining a happy world where [inaudible 00:32:21] to fix this problem. Can they just issue a new decision saying... What does the new decision say? Actually, I don't even know.

Stephen Sachs:           I'm sorry. You're saying the new decision that would declare that Erie is overruled. [inaudible 00:32:37]

Will Baude:    Well, but I'm confused about whether all of Erie needs to be solved, because I take it, again, some of the things Erie says, that maybe the state courts do make law, and if so, we might defer to them. That might still be correct.

Stephen Sachs:           I think a lot of what Erie says about the rules of decision act is probably wrong, but that's just a statutory interpretation question. But yes, the fundamental feature of the revised Erie when it comes to federal and state courts would be federal courts should follow state law. Sometimes that state law incorporates the general law by reference. Sometimes it involves local customs. Some states might do a weird thing where they actually authorize their courts to make law in this area. And so judges should find out which of these is the case, and then should act accordingly.

Will Baude:    I don't know. Should they even take a side that one is weird and the other is not? Couldn't they say, "Once upon a time we mistakenly believed no judges made law. Then we mistakenly believed that all judges made law. Both of these propositions are obviously false. Some judges make law and some don't. And whether they do or not is a question of constitutional law," I guess. What kind of power they've invested with.

Stephen Sachs:           State constitutional law.

Will Baude:    State constitutional law for state judges and federal constitutional law for federal judges. And maybe they'd even say, "Our constitution does not empower us to make law as what the state constitutions do, that's in turn a question of state law that should be sorted out state by state. And we will usually defer, pursuant to our usual principles on state law, we'll usually defer to the circuits and especially the circuit judges from those states about the content of their state's law." That be the right?

Stephen Sachs:           State judicial law-making for some, miniature American flags for others.

Will Baude:    Wait, why do they not get American flags?

Stephen Sachs:           Oh, that's a Kang and Kodos Simpsons reference.

Will Baude:    Would that satisfy you? Would that fix the problem of Erie?

Stephen Sachs:           I think it would put us on track to fixing the problem of Erie, because it would do a lot to put us on the right road and to help us stop digging.

Will Baude:    Well, but don't you then think in that world, almost everybody would conclude that almost all states have given their justice law-making power, except Georgia, which for some reason is really weird and continuing to deny that their court has law-making power.

Stephen Sachs:           I think that's probably true. Over the long term you'd probably see state reform efforts in various states.

Will Baude:    Who's the constituency for that?

Stephen Sachs:           In the same way that judicial law-making generally doesn't have a good odor. People don't like to campaign on that basis. I imagine you would see state legislatures for instance, much more interested in retaining some of those powers.

Will Baude:    Okay. I can see that. Odds that the Supreme Court will do anything like this in our lifetime?

Stephen Sachs:           Getting better. I think that what's interesting to me is that even part of it is that the pre-Erie world, the concerns that were really operative then, have in some ways receded. So the idea that federal courts, even before Erie, were sometimes overstepping their bounds in the other direction. They were saying that, "Well, Topic X is a topic in general law, and therefore we get to make the rules, even if the state has a local customer usage to the contrary." And that's really what angered a lot of the folks who are pushing for something like Erie. That isn't around as much anymore. That concern is sort of far back in time. And if you look at where are the academics leading on Erie? There's been a lot more criticism than support in the last 30 years or so. So, I don't know that it'll happen tomorrow, but I don't think it's unrealistic that it might happen at some point within our lifetimes.

Will Baude:    We've been talking only obliquely about federalism, but obviously part of this is all just a federalism question about the allegation of power between federal and state government officials. It seems like part of the reason those fears have gone away is now they don't let states do anything important anymore. If there's some business case where railroads are really upset by state doctrine, it used to be they had to go to federal court and trick the federal judges into overriding state law. Now they just go get Congress or some administrative agency to preempt state law, which they do all the time. So is that why this has all gone away?

Stephen Sachs:           It's possible that that's part of the reason, but state law still matters a lot, and state court decision still matter a lot. So it's unclear to me whether that's the crucial difference. It's also the case that nowadays we often think of the federal government as being a more progressive force than the state governments, which is not how Brandeis and company we're seeing it. They were assuming that the federal government was always going to be on the side of the railroads. And sometimes that's the case today, but it's also much more mixed. So I don't know if the political surveillance is quite the same today as it was back then.

Will Baude:    Okay. I think this is the last question I have. This has been amazing. So the pre-Erie regime was under a decision called Swift versus Tyson, written by Justice Story. And that decision, do you think it got right?

Stephen Sachs:           I do. Yes.

Will Baude:    And that's the decision that's set up this general law, described this general pattern of general law with state's ability to do their own thing if they want to, but general law background.

Stephen Sachs:           It wasn't the first, but it became the most celebrated, go-to example.

Will Baude:    Yeah. So I guess here's the real question I'm interested in. Was Justice Story ever wrong?

Stephen Sachs:           I think so. He got some stuff on full faith and credit incorrect, in my view, and I'm not totally sure I believe him on Article Three, federal question jurisdiction. There are some other areas. And I should say, I am not confident in the decision in Prigg.

Will Baude:    Fair enough. Okay. Yeah. Just wondering, as we think about his role in all this. Okay. That's all I have.

Stephen Sachs:           Thanks very much.

Will Baude:    That was terrific. Thank you very much. Special thanks to Barbara Flynn Currie and David Curry for the reading of the constitution in our introduction. Be sure to hit subscribe and follow us on Twitter @UChicagoConLaw.